A federal judge last week held that the federal government tried to skirt the First Amendment when it pressured social media companies to suppress “misinformation” during the pandemic. The judge’s conclusions will be litigated further, but they highlight the dangers inherent when private parties are used as government proxies to limit public debate.
But free speech isn’t the only vital liberty at risk under such a scheme. Government agents have also eroded the Fourth Amendment by using the private sector to avoid constitutional protections against unreasonable searches and seizures.
Last month, Rep. Warren Davidson, an Ohio Republican, and Rep. Sara Jacobs, a Democrat from California, added an amendment to the National Defense Authorization Act that would require the government to obtain a warrant before purchasing data on Americans from private information brokers.
The amendment comes after revelations that “federal law enforcement and intelligence agencies have repeatedly” purchased private information on cellphone users “without a warrant, from third-party commercial data brokers,” according to the Brennan Center for Justice at NYU Law.
In 2018, the U.S. Supreme Court strengthened the Bill of Rights by ruling in Carpenter v. United States that government agents need a warrant to compel communications companies to turn over detailed location information about customers. Since then, however, government officials “have made an end run around this warrant requirement by purchasing detailed and intimate information about Americans from commercial data brokers,” writes Noah Chauvin of the Brennan Center.
One might ask why Americans willingly provide so much of their intimate personal information to third parties in the name of convenience. But that’s a discussion for another day.
The New York Times reported in 2021 that lawyers with the Defense Intelligence Agency don’t construe the Carpenter decision as mandating a warrant for the purchase of data. But if the government may simply bypass restrictions in the Bill of Rights by using third party entities to do its dirty work, those freedoms are meaningless.
The amendment bans “federal law enforcement and intelligence agencies from purchasing Americans’ location information, web browsing history, internet search history or any other information protected by the Fourth Amendment,” Mr. Chauvin writes, “and requires these agencies to get a court order before obtaining this data.”
This is a reasonable approach that protects the privacy of Americans to some degree while allowing the authorities to access data under judicial supervision. Surely both Democrats and Republicans can agree that the Bill of Rights is worth protecting.
